DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

ex-OSSA, USN
Docket No. ND01-00078 

Applicant’s Request

The application for discharge review, received 001023, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  While serving in the military, I was arrested in Virginia Beach, Virginia for the alleged crime of murder.  I was being processed by the civilian authorities for trial in the matter.
Whereas, my command processed me for an Under other Than Honorable Discharge.  I was never informed or interviewed, I was never given notice, I was never spoken to by an attorney in the matter.  I never signed any papers or did any one from the military come to see me at the county jail.  I received notice of my discharge by mail after the fact.  I believe this to be a clear violation of my due process rights.  In which cannot be corrected or rectified pursuant to White vs.  Secretary Of The Army 878 F.2d 501 (1989), Blassingame vs.  Secretary Of The Navy 866 F.2d 556 (1989).

Upon receiving my records, I noticed that a "Statement Of Awareness And Request For, Or Waiver of, Privileges" dated March 17, 1986 (Attached Exhibit A, B) from me to the Commanding Officer.  I have never seen this document before and I have never mailed nor signed that document.  This document was dated March 17, 1986, at which time I was in the county jail.  I never signed or received said document, and at all times relevant I would have requested counsel.

Per NMPM 3640300 (3) qualified counsel was suppose to be appointed in this matter.  The language of NMPM3640300 (3a) states that counsel shall be appointed by the convening authority.  There is no room for neglect of this essential due process safe guard to be ignored or waived by the convening authority.  Whereas petitioner was denied his basic right to speak and consult with counsel.

Further, the signature on (Exhibits A thru B) is not my signature and has been forged in clear violation of all Federal, State, Navy, regulations, and a serious legal error in this discharge process.

Petitioner states that the Department of Navy at all times relevant knew his location and whereabouts.  At all times petitioner was unable to report' for duty due to his civilian incarceration at the Virginia Beach County Jail.  Petitioner had Honorable service up to his incarceration, which he was willing to serve.  The events that removed petitioner from active duty should have allowed this petitioner to receive at least a General Discharge Under Honorable Conditions as other services members have received.  Petitioner believes that his command abused it's authority when it decided to discharge him and chose to give him a bad discharge.

Petitioner states that if he would have been permitted counsel in this matter, he would have elected (conditional) waiver of the Administrative Board in lieu for a recommendation by the commanding officer for a discharge characterized as General Under Honorable Conditions.  Pursuant to NMPM 3640300.

Petitioner states that he was discharged Under Other Than Honorable Conditions, even thought he retained his rank as Seaman Apprentice E-2, with 3 years 1 month 14 days of good duty and service.  His service record is good, he had (3) three NJP'S in September, October, November 1985.

Petitioner seeks military pay for the period of February 1986 to the period of discharge.  The Department of Navy finance only paid this E-2 up to 9/5/86 a period of 7 months the amount of $77.95 (See Exhibit C).  Wherein this petitioner believes to be incorrect and unjust.  Petitioner request his proper pay.

Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on January 19,2001 and the following comments are hereby submitted.

The applicant enlisted into the United States Navy on February 22, 1983.  He was arrested and accused for committing a civil crime, which is of record.  He states he was not afforded the opportunity to have council and was inappropriately reported AWOL.  He contends he was incarcerated and was not available to report for duty.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for a General under Honorable.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of brief with points of arguments
Copy of Statement of Awareness and request for, or waiver of, privileges dated March 18, 1986
Copy of Leave and Earnings Statement prepared January 22, 1987
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	820701 - 830221	COG

Period of Service Under Review:

Date of Enlistment:  830222		Date of Discharge:  860505

Length of Service (years, months, days):

	Active:    03  02  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.60 (4)	Behavior:  2.60 (4)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  BEA

Days of Unauthorized Absence:  30

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.  Discharged in absentia.

Chronological Listing of Significant Service Events:

841011:	Retention Warning:  Advised of deficiency (Repeated failure to maintain minimum standards of military appearance and minimum uniform requirements, and frequent failure to be at your appointed place of duty (late for quarters and relieving watch).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
841219:	NJP for violation of UCMJ, Article 92: Wearing civilian clothing when not authorized to do so on 14Dec84.  [Extracted from CO's message dated 7Apr86.]
	Award: Not found in service record.

850920:	NJP for violation of UCMJ, Article 86: Failing to go to place of duty on 16Sep85, violation of UCMJ, Article 91: Disobeying a petty officer on 16Sep85, violation of UCMJ, Article 113: Sleeping on watch on 13Sep85.
	Award: Forfeiture of $347 per month for 1 month, restriction and extra duty for 30 days, reduction to OSSA.  No indication of appeal in the record.

851105:	Applicant declared a deserter.

851121:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0800, 6Oct85 to 2059, 6Nov85 (30 days/apprehended), violation of UCMJ, Article 87 (2 specs): Missing movement on 7Oct85 and 4Nov87, violation of UCMJ, Article 90: Willful disobedience of a superior commissioned officer on 19Nov85.
	Award: Forfeiture of $319 per month for 1 month, restriction and extra duty for 45 days, reduction to OSSR.  No indication of appeal in the record.

851217:	NJP for violation of UCMJ, Article 121: Larceny of one pair of S&W handcuffs of a value of $68.00 on 1Nov85.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 21 days.  Restriction and extra duty suspended for 3 months.  No indication of appeal in the record.

860130:	Applicant arrested by Virginia Beach Police Department on charges of capital murder and conspiracy to commit murder against Navy chief on 29Jan86.  Applicant subsequently confessed to crime and since turned states evidence against FN and wife of victim.  Applicant to be arraigned 18Apr86.

860317:	Copy of Naval Investigative Service report in service record.

860318:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

860318:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

860407:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

860414:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged in absentia on 860505 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In points I and II, the petitioner (applicant) raises issues of propriety concerning his discharge.  The petitioner (applicant) states that “upon receiving my records, I noticed that a "Statement Of Awareness And Request For, Or Waiver of, Privileges" dated March 17, 1986 (Attached Exhibit A, B) from me to the Commanding Officer.  I have never seen this document before and I have never mailed nor signed that document.  This document was dated March 17, 1986, at which time I was in the county jail.  I never signed or received said document, and at all times relevant I would have requested counsel.”  The Board found in the applicant’s record a Statement of Awareness And Request For, Or Waiver Of, Privileges dated 17 March 1986 and signed by the applicant on 18 March 1986.  The applicant did not desire to consult with counsel and waived all rights.  The Board presumes regularity in government affairs concerning this issue and finds no basis for relief absent substantial credible evidence to the contrary from the applicant.

In point III, the petitioner (applicant) states that “the Department of Navy at all times relevant knew his location and whereabouts.  At all times petitioner (applicant) was unable to report' for duty due to his civilian incarceration at the Virginia Beach County Jail.  Petitioner (applicant) had Honorable service up to his incarceration, which he was willing to serve.  The events that removed petitioner (applicant) from active duty should have allowed this petitioner (applicant) to receive at least a General Discharge Under Honorable Conditions as other services members have received.  Petitioner (applicant) believes that his command abused it's authority when it decided to discharge him and chose to give him a bad discharge.”  The offense the applicant committed warranted an Under Other Than Honorable Conditions discharge.  The Board determined that Navy regulations allow an “in absentia” discharge in situations of this type.  Relief will not be granted concerning this issue.

In point V, the petitioner (applicant) states that “he was discharged Under Other Than Honorable Conditions, even thought he retained his rank as Seaman Apprentice E-2, with 3 years 1 month 14 days of good duty and service.  His service record is good, he had (3) three NJP'S in September, October, November 1985.”  The Board does not consider the applicant’s service record to be anywhere near “good”.  The applicant received three NJP’s in less than three months and could have received an Under Than Honorable or Bad Conduct discharge for each of the offenses he committed.  No relief is warranted for this issue.

Concerning points IV and VI, the Board finds these issues to be non-decisional in determining whether relief is justifiable in this case.

In conclusion, the Board determined that to permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560, Change 10/85, effective 
16 Dec 85 until 05 Oct 86),  Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 121, for larceny, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023